Appeal No. 2001-0758 Page 4
Application No. 08/919,477
appended peptide with tyrosine at the amino terminus, lysine at the carboxy terminus
(with no amino acid residues at all between them), and an aminopolycarboxylate
(DTPA) conjugated to the ,-amino group of lysine via one of its carboxylic acid groups.
Moreover, Barbet explicitly suggests that a connecting bridge containing “one or several
D-amino acids [is] preferred.” Column 4, lines 9-10.
That being the case, we agree with the examiner to the extent that he concludes
that Barbet “would render obvious [radioiodinated] N-alpha-DTPA-Tyr-N-epsilon-DTPA-
lysine containing D-amino acids and additionally . . . peptides . . . [wherein] Tyr is
separated from Lys by one or more D-amino acids.” Answer, page 4.
Nevertheless, claims 1-9 broadly require “a linker group for covalently binding
[the] aminopolycarboxylate-appended peptide to an antibody.” That is, even though
there is no requirement that the aminopolycarboxylate-amended peptide be covalently
bound to an antibody, it must contain a linker capable of doing so (stated another way,
the peptide need only contain a linker capable of covalently binding an antibody). It is
the examiner’s treatment of this limitation that gives rise to our difficulties in reviewing
the rejection at issue.
In the final rejection, apparently with respect to the “linker” limitation, the
examiner explicitly concedes that “the Barbet reference teaching of a ‘hapten’ ([ ] e.g.
DTPA) attached to a D/L Tyr containing peptide fails to anticipate or render obvious (by
itself) the . . . invention of claims 1 and 8 (and claims dependent thereon)” (Final
Rejection, Paper No. 10, page 4). However, in responding to appellants’ argument in
the Brief that Barbet fails to disclose the required linker, the examiner retracts that
concession, asserting that appellants are “misguided in this respect” as “the linker
limitation is met by the other DTPA present in [Barbet’s] compound (e.g. N-alpha
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